Sarno v. Illinois Crime Investigating Commission
Decided on May 22, 1972; 406 US 482


Witnesses insist that immunity is not sufficient to protect their
5th Amendment privilege against self-incrimination


I. ISSUES II. CASE SUMMARY III. AMICI CURIAE IV. DECISION V. WIN OR LOSS?
I. ISSUES:

A. Issues Discussed:

Criminal Justice (procedure), 5th Amendment

B. Legal Question Presented:

When an unwilling witness who invokes the privilege against self-incrimination is compelled to testify through the granting of immunity, are their 5th Amendment rights violated?

II. CASE SUMMARY:

A. Background:

The government has the power to compel citizens to testify in court or before grand juries or agencies.  However, one exemption from this duty is the 5th Amendment privilege against self-incrimination.  The privilege against self-incrimination is that “(n)o person… shall be compelled in any criminal case to be a witness against himself,” and it protects the witness against disclosures which they believe could be used in a criminal prosecution against them.  

In this case, petitioners were ordered to testify before the Illinois Crime Investigating Commission under a statutory grant of “use and derivative use” immunity.  The immunity statute provides that when a witness is compelled to testify, they may not refuse to testify on the basis of invoking their Fifth Amendment privilege against self-incrimination, but it also guarantees that the compelled testimony and any evidence derived from it cannot be used in a subsequent criminal case against the witness offering the testimony.
 
Petitioners refused to testify on the basis that the immunity granted was not as broad in scope as their 5th Amendment privilege against self-incrimination.

Petitioners argued that a broader immunity was required, known as “transactional” immunity, under which a witness cannot ever be prosecuted for any crimes he may be required to testify about. The United States Supreme Court granted certiorari to review whether the immunity provided was sufficient to bypass petitioners’ 5th Amendment rights.
B. Counsel of Record:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Frank G. Whalen argued the cause and filed a brief for petitioners.

Joel M. Flaum, First Assistant Attorney General of Illinois, argued the cause for respondent. With him on the brief were William J. Scott, Attorney General, and Jayne A. Carr, Assistant Attorney General.
C. The Arguments:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Unavailable Unavailable
III. AMICI CURIAE:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
 Melvin L. Wulf filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.  No amici curiae briefs were filed on behalf of respondent.
IV. THE SUPREME COURT'S DECISION:

"We held today in Kastigar v. United States and in Zicarelli v. New Jersey State Commission of Investigation, that testimony may be compelled from an unwilling witness over a claim of the privilege against self-incrimination by a grant of use and derivative use immunity.
 
The premise of petitioners' arguments is that transactional immunity is required. They say that Illinois failed to demonstrate satisfactorily that transactional immunity was provided, but they do not contend that the Illinois immunity statute affords protection less comprehensive than use and derivative use immunity.
 
Respondent asserts that the statute affords complete transactional immunity, reflecting a long-standing Illinois policy of providing immunity greater than that required by the United States Constitution.
 
Since neither party contends that the scope of the immunity provided by the Illinois statute falls below the constitutional requirement set forth in Kastigar, we conclude that any uncertainty regarding the scope of protection in excess of the constitutional requirement should best be left to the courts of Illinois. Accordingly, the writ of certiorari is dismissed as improvidently granted."

Held: The writ of certiorari is dismissed.
Justice Vote: 2 Pro vs. 5 Con
Per Curiam decision (no individual authorship of the majority opinion)
  • White, B. Con 
  • Burger, W. Con 
  • Blackmun, H. Con 
  • Stewart, P. Con 
  • Powell, L. Con 
  • Douglas, W. Pro (Wrote dissenting opinion)
  • Marshall, T. Pro (Wrote dissenting opinion)
  • Brennan, W. Took no part in the decision of the case
  • Rehnquist, W. Took no part in the decision of the case
  •  
    V. A WIN OR LOSS FOR THE ACLU?

    The ACLU filed as amicus urging reversal; the US Supreme Court dismissed the writ of certiorari in a 5-2 vote, giving the ACLU an apparent loss.